David RUIZ, et al., Plaintiffs,

v.

Gary JOHNSON, Director TDCJ-ID, et al., Defendants.

No. CIV.A. H-78-987.

United States District Court,

S.D. Texas,

Houston Division.

March 1, 1999.

Texas prison officials moved to terminate judgment finding aspects of prison system to be in violation of prisoners' constitutional rights. The District Court, Justice, Senior District Judge, held that: (1) earlier court order, relinquishing jurisdiction over question whether system for classifying prisoners was inadequate, did no preclude court from further considering adequacy of classification, following reduction in prison staff performing classification functions; (2) provision of Prison Litigation Reform Act (PLRA), terminating all court orders calling for prospective relief two years after its effective date, violated separation of powers principles of Constitution when applied to indefinite duration consent order requiring that Texas prisons be brought into conformity with constitutional requirements; (3) PLRA did not violate due process rights of prisoners; (4) PLRA did not violate equal protection rights of prisoners; (5) prison medical treatment did not violate Eighth Amendment Rights of prisoner's; (6) placement of prisoners in administrative segregation was Eighth Amendment violation; (7) prisons exhibited deliberate indifference to safety of prisoners, in violation of their Eighth Amendment rights; and (8) prisoners were subjected to excessive force, in violation of their Eighth Amendment rights.

Order accordingly.

Donna Brorby, Law Office of Donna Brorby, San Francisco, CA, Virginia Morrison, Gail Saliterman, Holly Baldwin, Christina Arenas, Amber Lee, San Francisco, CA, William G. Maddox, U.S. Dept. of Justice, Civil Rights Div., Special Litigation Section, for Plaintiffs.

Daniel Maeso, Assist. Atty. General, Sharon Felfe, Jeff Millstone, Adirian L. Young, Demetri Anastasiadis, Reed Lockhoof, Richard Naylor, Lawrence Wells, Lee Haney, Bruce Garcia, Ann Kraatz, Louis Carrillo, Karen Matlock, Assist. Attorneys General, Gregory S. Coleman, Solicitor General, jack Ratliff, Special Assist., for Defendants.

MEMORANDUM OPINION

JUSTICE, Senior District Judge.

TABLE OF CONTENTS

I. INTRODUCTION ........................................................ 860

A. Case History ................................................... 862

1. Ruiz v. Estelle ............................................ 862

2. The 1992 Final Judgment .................................... 863

B. The Prison Litigation Reform Act ............................... 864

C. Post-1992 Procedural History ................................... 865

II. SUMMARY AND CLARIFICATION OF ISSUES ................................. 869

A. The Parties' Positions ......................................... 869

B. The Proper Scope of this Decision .............................. 870

III. LEGAL AND CONSTITUTIONAL CHALLENGES TO THE PLRA ..................... 872

A. Retroactivity .................................................. 872

B. Separation of Powers ........................................... 872

1. Separation of Powers Challenges to the PLRA ................ 873

2. Congress's Inability to Reopen an Article III Court's Final

Judgment ................................................. 874

3. The Consent Decree as a Final Judgment ..................... 875

4. The Final Judgment's Protection of Inmates' Private

Constitutional Rights .................................... 876

5. Congress's Inability to Decide a Discrete Group of Cases ... 878

6. The PLRA's Ambiguous Drafting .............................. 879

7. The PLRA's Unambiguous Legislative History ................. 880

8. Conclusion ................................................. 882

C. Due Process .................................................... 882

D. Equal Protection ............................................... 883

E. Conclusion ..................................................... 884

IV. THE FACT-FINDING HEARING ............................................ 884

A. Procedure for the Truncated Hearing ............................ 884

B. Procedure for Evidentiary Objections ........................... 884

V. OVERVIEW OF THE EVIDENCE ............................................ 885

VI. OVERVIEW OF PRISONERS' RIGHTS UNDER THE EIGHTH AMENDMENT ............ 886

VII. PROVING SYSTEMIC CONSTITUTIONAL VIOLATIONS .......................... 888

A. A Matter of "Logic and Judgment" ............................... 888

B. Defendants' Objections to Plaintiffs' Experts' Methodology ..... 889

C. Constitutional Violations As Legal Judgments ................... 892

VIII. MEDICAL AND PSYCHIATRIC SERVICES .................................... 892

A. Compendium ..................................................... 892

B. Medical Testimony and Findings of Fact ......................... 892

1. Quality of Care Audits-Cancer, Cardiac Disease, and HIV .... 894

2. Non-physician Health Care .................................. 897

3. Inadequate Evaluation and Referral ......................... 898

4. Failure to Follow-up ....................................... 898

5. Staff Indifference ......................................... 898

6. Poor Treatment of Diabetes ................................. 899

7. The Lack of Satisfactory Communication Between Hospitals

and Prisons .............................................. 900

8. Medically Contraindicated Work ............................. 901

9. The Lack of Self-Monitoring ................................ 901

10. Accreditation .............................................. 901

C. Psychiatric Testimony and Findings of Fact ..................... 902

D. Legal Analysis and Conclusions ................................. 906

IX. ADMINISTRATIVE SEGREGATION .......................................... 907

A. Compendium ..................................................... 907

B. Testimony and Findings of Fact ................................. 907

1. The Psychological Effects of Administrative Segregation .... 907

2. Mentally Ill Inmates in Administrative Segregation ......... 911

3. TDCJ Policies .............................................. 913

C. Legal Analysis and Conclusions ................................. 913

X. INMATES' SAFETY ..................................................... 915

A. Compendium ..................................................... 915

B. Testimony and Findings of Fact ................................. 916

1. Introduction ............................................... 916

2. Physical Assaults on Inmates ............................... 916

3. Sexual Assaults on Inmates ................................. 917

4. Plaintiffs' Experts ........................................ 919

5. Defendants' Response ....................................... 920

6. The Grievance Process ...................................... 922

7. Safekeeping and Protective Custody ......................... 922

8. Accreditation .............................................. 924

9. Classification Staff ....................................... 925

10. Deliberate Indifference .................................... 925

C. Legal Analysis and Conclusions ................................. 926

XI. EXCESSIVE FORCE ..................................................... 929

A. Compendium ..................................................... 929

B. Testimony and Findings of Fact ................................. 929

1. Introduction ............................................... 929

2. An Overview of Expert Methodology .......................... 930

3. TDCJ-ID Policies and Procedures ............................ 932

4. A Culture of Force ......................................... 932

5. The Prevalence of Excessive Force .......................... 933

6. The Ambiguity of the Numbers ............................... 934

7. Non-physical Force ......................................... 935

8. Monitoring, Supervision, Grievances, and Investigations .... 936

C. Legal Analysis and Conclusions ................................. 938

XII. CONCLUSION .......................................................... 940

860 I. INTRODUCTION

Counsel for the State of Texas, in an opening statement in this matter, declared that "[u]nder the guidance of this court, and out of a sincere desire to improve its prison system, ... Texas has transformed its prison policies and practices over the course of the last 20 years." [FN1]

FN1. These are the words of then newly-elected Attorney General of Texas, the Honorable John Cornyn. Jan. 21 Tr. at 2.

There can be no doubt that since David Ruiz and the other named plaintiffs began this civil action in 1972 with allegations of unconstitutional practices and conditions in the Texas Department of Corrections' (TDC) prisons, the parties have effected remarkable changes within the prison system. In an epic trial in 1978 and 1979, the plaintiffs' evidence offered a rare glimpse behind the walls that so conveniently shielded free world society from the barbarous living conditions of many of the approximately 25,000 individuals then incarcerated in the TDC prison system. [FN2] Faced with the staggering magnitude of the constitutional violations found in Texas prisons in 1980, this court regretfully acknowledged that

FN2. Today, the "prison system" is more accurately represented by what is called the Texas Department of Correctional Justice (TDCJ) or the Texas Department of Correctional Justice-Institutional Division (TDCJ-ID). Johnson, Jan. 30 Tr. at 186-191.

it is impossible for a written opinion to convey the pernicious conditions and the pain and degradation which ordinary inmates suffer within TDC prison walls-the gruesome experiences of youthful first offenders forcibly raped; the cruel and justifiable fears of inmates, wondering when they will be called upon to defend the next violent assault; the sheer misery, the discomfort, the wholesale loss of privacy for prisoners housed with one, two, or three others in a forty-five foot cell or suffocatingly packed together in a crowded dormitory; the physical suffering and wretched psychological stress which must be endured by those sick or injured who cannot obtain adequate medical care; the sense of abject helplessness felt by inmates arbitrarily sent to solitary confinement or administrative segregation without proper opportunity to defend themselves or to argue their causes; the bitter frustration of inmates prevented from petitioning the courts and other government authorities for relief from perceived injustices.

Ruiz v. Estelle, 503 F.Supp. 1265, 1390 (S.D.Tex.1980).

Truly, much has changed. The Texas prison system, having grown to incarcerate approximately 140,000 inmates in over 100 penal institutions, has instituted a complex web of policies and regulations designed to alleviate many, if not all, of those problems. Today, plaintiffs and defendants alike look back with horror at the way the system used to be. Plaintiffs and defendants alike may also look back with pride at how much the system has changed.

Of course, transformation does not, in and of itself, a constitutional institution make. Although a legitimate source of pride, the prison system's continuing evolution neither proves compliance with the constitution, nor lowers the basic standards of humanity that the constitution demands. To assess the existence of on-going constitutional violations in the Texas prison system, this court must consider not the system's reformation over the last two decades, but that reformation's contemporary product. It must be determined whether the policies, practices, and conditions of the Texas prison system, as they exist today, provide the humanitarian protections afforded inmates by the Constitution of the United States. Inmates, although they do give up many of their constitutional liberties and rights upon incarceration, do not live in a world void of constitutional protections. As the United States Court of Appeals for the Fifth Circuit has reminded us, "[t]here is no iron curtain drawn between the Constitution and the prisons of this country." Ruiz v. Estelle, 679 F.2d 1115, 1126 (5th Cir.1982).

Prisons, of course, are designed to punish. Institutions of incarceration are an unfortunately necessary infrastructure of our society. And, this court has sentenced more offenders to such institutions than it cares to remember. However, an offender is sentenced to a term of imprisonment; an offender should not, and must not, be sentenced to a term of enslavement by gangs, rape and abuse by predatory inmates, or excessive force by prison employees. To allow such "punishment" would run counter to modern penologists' ambitions of corrective rehabilitation. As this court stated after the original trial in this civil action, such "iniquitous and distressing circumstances are prohibited by the great constitutional principles that no human being, regardless of how disfavored by society, shall be subjected to cruel and unusual punishment or be deprived of the due process of the law within the United States of America." Ruiz, 503 F.Supp. at 1390.

Couched in two motions [FN3] to terminate its jurisdiction in this civil action, this court has before it, once again, questions of the Texas prison system's constitutionality. After determining that the termination provisions of the Prison Litigation Reform Act violate the separation of powers doctrine and due process clause of the Constitution of the United States, the court has alternatively found the Texas prison system continues to violate inmates' constitutional rights.

FN3. These motions have been brought pursuant to 18 U.S.C. 3626(b)(1) and (b)(2).

It is determined that TDCJ's medical and psychiatric care systems, while at times plagued by negligent and inadequate treatment of members of the plaintiff class, are not so deliberately indifferent to inmates' physical and mental health needs as to be unconstitutional. The extreme deprivations and repressive conditions of confinement of Texas' administrative segregation units, however, have been found to violate the Constitution of the United States' prohibition against cruel and unusual punishment, both as to the plaintiff class generally and to the subclass of mentally ill inmates housed in such confinement. Furthermore, members of the plaintiff class still live under conditions allowing a substantial risk of physical and sexual abuse from other inmates, as well as malicious and sadistic use of force by correctional officers. Despite its institutional awareness of these conditions, TDCJ has failed to take reasonable measures to protect vulnerable inmates from other, predatory prisoners and overzealous, physically aggressive state employees.

These findings do nothing to diminish the respect and approbation deserved by those in TDCJ who work diligently to punish, reform, and rehabilitate society's offenders. Over the course of this litigation, this court has developed a profound appreciation for the formidable task of handling Texas' massive incarcerated population. As the plaintiffs themselves have acknowledged, the Texas prison system, from its policy-makers to its correctional officers, employs many conscientious public servants-individuals who recognize that prisons must not only punish wrong-doers but also attempt to improve them. It is hoped that these same public servants, in light of the evidence produced before this court, recognize that similar improvement is required of the prison system itself.

A. Case History

1. Ruiz v. Estelle

Seeking declaratory and injunctive relief for alleged violations of their constitutional rights, David Ruiz and other inmates brought suit in 1972, pursuant to 42 U.S.C. 1983, against the Director of TDC. In 1974, Ruiz's civil action was consolidated with a number of others, and class action status was granted to the plaintiffs, who represented all past, present, and future inmates in the Texas Department of Corrections. The inmate plaintiffs, joined by plaintiff-intervenor the United States, [FN4] alleged TDC conditions and practices violated the Eighth and Fourteenth Amendments to the Constitution of the United States.

FN4. The United States government joined the prisoners in their claim that prison practices were unconstitutional. Defendants strenuously resisted the involvement of the United States at that time. See Ruiz, 503 F.Supp. at 1276 n. 3.

Extensive discovery continued through 1977. [FN5] After several procedural and logistical delays, trial commenced in Houston, Texas, on October 2, 1978, [FN6] with the undersigned judge sitting by designation in the Southern District of Texas. Trial lasted 159 days. By the end of trial, the court had heard the testimony of 349 witnesses and had received approximately 1,565 exhibits into evidence. As this court noted at the time, the trial "lasted longer than any prison case-and perhaps any civil rights case-in the history of American jurisprudence. In marked contrast to prison cases in other states, the defendant prison officials here refused to concede that any aspect of their operations were unconstitutional, and vigorously contested the allegations of the inmate class on every issue." [FN7] Ruiz, 503 F.Supp. at 1390.

FN5. During this time, a number of hearings were conducted to consider a variety of outstanding matters, including disputed discovery issues and requests by the named inmate plaintiffs for protection from retaliation by the defendants. An order enjoining TDC officials from interfering with plaintiffs' access to counsel and the courts, and from engaging in various other forms of harassment, retaliation, and discrimination against the plaintiffs, was issued on December 30, 1975.

FN6. Defendants had sought and been granted an order transferring this civil action to the Southern District of Texas in Houston based on "substantial logistical and security concerns generated by the prospect of transporting and housing" hundreds of inmate witnesses, most of whom where confined in the Southern District.

FN7. For example, many TDC officials denied that inmate "building tenders" were serving as guards and were being granted immunity to harass, threaten, and physically punish other inmates. See Ruiz, 503 F.Supp. at 1295.

In its 1980 memorandum opinion, this court made separate factual findings and legal analyses of plaintiffs' claims. Detailed findings of fact were made in the areas of overcrowding, security and supervision, health care (including medical, dental, and psychiatric care, as well as the special needs of some inmates), discipline, access to the courts, and fire and work safety. Based on those factual findings, this court held that the prisons were grossly overcrowded, that sanitation and recreational facilities were wholly inadequate, that health care was inadequate, that hearing procedures for discipline were inadequate, that access to courts was inadequate, and that fire safety and sanitation standards were in violation of state law and the Constitution.

On April 20, 1981, [FN8] this court issued a consent decree granting comprehensive injunctive relief. See Ruiz, 679 F.2d 1115, Appendix A. The order obligated TDC to reduce, inter alia, the inmate population in each prison unit to alleviate overcrowding, to increase the security guard and support staff, to furnish adequate medical and psychological care, and to bring all living and working environments into compliance with state health and safety standards. Also, a special master was appointed to supervise and monitor the defendants' effectuation of this court's orders. Ruiz, 503 F.Supp. at 1389.

FN8. This injunction was amended on May 1, 1981.

After a series of motions and appeals by defendants, [FN9] this first phase of Ruiz case finally culminated with the Fifth Circuit's affirmation of this court's determination that TDC imposes cruel and unusual punishment on inmates in its custody as a result of the totality of conditions in its prisons. The Fifth Circuit also affirmed this court's finding that some of TDC's practices deny inmates due process of law. The Fifth circuit further affirmed this court's decision that remedial measures were necessary. The appellate court, however, narrowed the scope of some of the remedies imposed by this court on TDC to bring the system into compliance with the Constitution. [FN10] Ruiz, 679 F.2d 1115. [FN11]

FN9. See Ruiz v. Estelle, 650 F.2d 555 (5th Cir.1981)(granting in part and denying in part defendants' motion to stay provisions of the district court injunction); Ruiz v. Estelle, 666 F.2d 854 (5th Cir.1982) (granting in part and denying in part defendants' motion to stay portions of the district court injunction).

FN10. More specifically, the Fifth Circuit declared proper those portions of the decree requiring TDC to reduce its overall inmate population, requiring that each inmate confined in a dormitory be provided with 40 square feet of space, requiring TDC to preserve a verbatim record of all disciplinary hearings, requiring TDC to give inmates in administrative segregation the opportunity for regular exercise, and requiring that inmates be allowed access to courts, counsel, and public officials. Ruiz, 679 F.2d 1115 (5th Cir.1982).

FN11. The Fifth Circuit later vacated aspects of that opinion that had been settled by the parties after the issues had been briefed, argued, and submitted. Ruiz v. Estelle, 688 F.2d 266, 267 (5th Cir.1982).

2. The 1992 Final Judgment

During the rest of the 1980's, the parties continued to negotiate various remedial measures, at times coming back before this court with stipulations and motions. See Ruiz v. Lynaugh, 811 F.2d 856, 857 (5th Cir.1987). In March 1990, this court ordered the parties to negotiate a comprehensive settlement of all remedial issues. [FN12] That agreement was submitted to the court in July of 1992. [FN13]

FN12. In July 1992, plaintiff-intervenor United States, filed a motion in support of a January 1991 defendants' motion to terminate all existing orders. The United States asserted that there had been "dramatic improvements of conditions throughout" the prison system, that "there can be no serious claim that Texas is not currently in compliance with the Constitution," and that defendants "have substantially complied with the court's orders in this case."

FN13. Plaintiff-intervenor United States notified the court that it did not object the proposed final judgment.

After an evidentiary hearing, this court adopted the parties' agreement and issued both a memorandum opinion to that effect, and a separate order approving the judgment, on December 11, 1992. This Final Judgment vacated and replaced numerous detailed orders and compliance plans. It resulted in termination of the court's jurisdiction in nine substantive areas and continuing permanent injunctive orders on eight substantive issues. The remaining substantive areas were staffing, discipline, administrative segregation, use of force, access to courts, crowding, health services, and death row. In that memorandum opinion, this court praised prison system officials for their continued attempts to improve TDCJ-ID:

TDCJ-ID has remade itself into a professionally operated agency whose goals are to achieve the highest standards of correctional excellence.

Equally important, the measures taken by TDCJ-ID officials to meet their constitutional obligations have been memorialized and institutionalized in numerous internal rules and regulations that have replaced this court's orders as the agency's 'road map' to success. The court is satisfied that the defendants not only will maintain and implement these rules and regulations, but also will continue to strive to improve on them and their implementation despite the absence in many areas of detailed court orders.

The parties have caused remarkable and palpable changes to occur within TDCJ- ID, and for that the court is grateful.

It is the continued viability of this Final Judgment that is at issue before the court today.

B. The Prison Litigation Reform Act

President Clinton signed the Prison Litigation Reform Act of 1995 ("PLRA") into law on April 26, 1996, as part of an omnibus appropriations bill for fiscal year 1996. Pub.L. No. 104-134, 801-810. According to its proponents, the dual purpose of the legislation was to limit federal-court intervention in the operation of correctional facilities and to curb frivolous inmate litigation.

To that end, the PLRA's amendments to 18 U.S.C. 3626 include several provisions regarding the "termination of prospective relief." 18 U.S.C. 3626(b). Two of these provisions are at issue here. The first is the "immediate termination" provision of the PLRA. 18 U.S.C. 3626(b)(2). This provision calls for immediate termination of any prospective relief in any civil action with respect to prison conditions, if such relief does not contain a finding that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. 18 U.S.C. 3626(b)(2). The procedure for implementing this "immediate termination" provision is set forth in 18 U.S.C. 3626(e), which provides that the district court shall promptly rule on such motions and calls for an automatic stay of the prospective relief beginning on the thirty-first day after such motion is filed.

Such an "immediate termination" motion, brought pursuant to 18 U.S.C. 3626(b)(2), is subject, however, to the qualification of 3626(b)(3). That provision states that relief should not be terminated if such relief remains necessary to correct "a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and ... is narrowly drawn and the least intrusive means to correct the violation." 18 U.S.C. 3626(b)(3); see Fifth Circuit Order in No. 96-21118, Aug. 6, 1997, at 22-24.

In addition to this "immediate termination" clause, the "two-year termination" provision of the PLRA is now at issue before this court. That provision authorizes termination of a final judgment (that was entered before the passage of the PLRA) two years after the enactment of the statute. 18 U.S.C. 3626(b)(1)(iii). The "two-year termination," or "(b)(1) provision," is subject to the same caveat as the "immediate termination" provision of (b)(2)-relief should not be terminated if it remains necessary to correct constitutional violations. 18 U.S.C. 3626(b)(3).

Defendants filed a motion to terminate under the "immediate termination" provision on September 5, 1996. Further, defendants filed a motion to terminate under the "two-year termination" provision on May 5, 1998. Both motions were at issue in the hearing held before this court beginning on January 21, 1999.

C. Post-1992 Procedural History

Although this hearing was held pursuant to the PLRA, the procedural track leading to this decision actually began before that law was enacted. On March 25, 1996, pursuant to Fed.R.Civ.P. 60(b)(5), [FN14] the state defendants filed a Motion to the Vacate Final Judgment, and thereby sought to nullify their four-year old court-adopted settlement agreement with the plaintiff class. The defendants argued that their "compliance with the Final Judgment, the public's interest and the State of Texas' desire to exercise autonomy over its institutions, mandate that any remaining vestiges of court involvement- however passive-with the prison system, now be vacated." Defendants claimed to operate a constitutional prison system and acknowledged that "no practical effect would be felt by the vacating of the Final Judgment...." (Def. Mot. to Vacate Final J., Mar. 25, 1996).

FN14. Rule 60(b)(5) of the Fed. R. Civil Procedure provides, "On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the ... [reason that] the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application ..."

One month later, on April 26, 1996, the United States Congress passed the Prison Litigation Reform Act (PLRA). 18 U.S.C. 3626.

In hopes of assessing the continued necessity, if any, of the 1992 Final Judgment, on May 31, 1996, this court appointed counsel for the plaintiff class and ordered that both parties "shall meet and confer within forty-five days ... and attempt to (1) narrow the issues in dispute, (2) establish a joint discovery plan, (3) discuss what role, if any, the Special Master in this cause could play in the efficient development of a factual record, and (4) propose to the court an agreed-upon schedule for a hearing on the defendants' motion." By August 8, 1996, the defendants reported back to this court that initial discovery had begun and that the parties would agree on a hearing date once the need for further discovery was assessed. [FN15]

FN15. At that time, the United States Department of Justice (DOJ), a plaintiff-intervenor, was participating in the party conferences and discovery plans. In November of 1996, DOJ withdrew its participation in this civil action, indicating that it would pursue its concerns by an independent action pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et seq. Plaintiffs to that point had been relying on DOJ's expert audits and inspections and therefore had to immediately retain their own medical and psychiatric experts to do the necessary discovery.

On September 5, 1996, defendants supplemented their Rule 60(b)(5) motion to vacate the judgment with a motion to terminate under the "immediate termination" provision of the PLRA. 18 U.S.C. 3626(b)(2). [FN16] Defendants asserted that this court's 1992 Final Judgment must immediately terminate because it did not contain the findings proscribed in the PLRA-that the relief is narrowly drawn, that it extended no further than necessary to correct the violation of the Federal right at issue, and that it was the least intrusive means necessary to correct the violation of the Federal right. 18 U.S.C. 3626(b)(2). Plaintiffs served their response to this supplemental motion to vacate on September 20, 1996. Therein, plaintiffs contended that the PLRA cannot be applied retroactively to invalidate the Final Judgment, that the 1992 Final Judgment does, "in substance and effect," make the required findings, that a fact-finding hearing would be necessary to resolve the defendants' motions, that defendants were estopped from invoking the "automatic stay" provisions of the PLRA, and that the PLRA's invalidation of the 1992 Final Judgment would violate the United States Constitution for a number of reasons.

FN16. Defendants would eventually drop their Rule 60(b)(5) motion to vacate, leaving only the PLRA motions.

Affirming plaintiffs' concerns regarding the automatic stay provisions' constitutionality, on September 24, 1996, the United States filed its Response to Defendants' Supplemental Motion to Vacate Final Judgment, in which the Justice Department [FN17] acknowledged that a literal reading of the PLRA would render the automatic stay provision unconstitutional under the separation of powers doctrine. 1996 WL 932104 (S.D.Tex.). The United States suggested that its constitutionality may be preserved by reading the automatic stay provision to allow time for a "court's deliberative processes." Id. at *19. Although it took no position on whether this court should vacate the Final Judgment, the United States did express "some continued concern over issues of medical and mental health care in the Texas prison system, based on numerous complaints [the federal government] [had] received in the last few years." Id. at *1.

FN17. As already related, the United States government was a plaintiff intervenor in the original litigation.

On September 25, 1996, this court addressed the "automatic stay" provision's constitutionality. It was determined that "the PLRA 'automatic stay' provisions violate the Separation of Powers and due process of law."

Pursuant to the PLRA's mandate that the existence of "ongoing constitutional violations" be considered, this court also ordered discovery to develop a record on the alleged existence of on-going constitutional violations in TDCJ. Further, this court stated that it would "proceed to give due consideration to both of defendants' motions when the parties are ready for a hearing on them."

Defendants then began what would prove to be an extended campaign to avoid such a hearing. On October 24, 1996, defendants moved for a stay of this court's September 25, 1996, discovery order pending the resolution of their appeal before the Fifth Circuit. This court denied that motion on November 14, 1996. On December 31, 1996, the Fifth Circuit denied defendants' motion to stay the discovery. The Fifth Circuit also noted the doubtful appealability of such an order.

Defendants petitioned the Fifth Circuit on January 24, 1997, for the writ of mandamus ordering this court to stay discovery and to decide their motion to terminate without any further investigation of "current or ongoing" constitutional violations. After hearing oral arguments on June 3, 1997, the Fifth Circuit, in a decision dated August 6, 1997, denied defendants' petition for writ of mandamus, and determined that this court's discovery order was unappealable. [FN18]

FN18. In that decision, the Fifth Circuit also denied the motion of Texas Representative Culberson and Texas Senator Brown to intervene in this civil action.

Some discovery, in the form of document production and site inspections, began in 1996. [FN19] In light of defendant's assertion in their recent Motion for Judgment that "[p]laintiffs have had two-and-a-half years to scour the Texas prison system to identify its imperfections," however, it is important to note that throughout 1997, defendants resisted and delayed plaintiffs' discovery in this civil action. During January of 1997, defendants held the position that discovery should not be conducted pending the Fifth Circuit's decision in defendants' appeal. Defendants informed plaintiffs' counsel that neither they, nor their experts and staff, would be allowed to enter any prison facility without an order of this court. (Decl. of Donna Brorby in Supp. of Mot. to Compel, Oct. 17, 1997.)

FN19. In August 1996, however, defendants canceled plaintiffs' scheduled medical tours and audits because defendants objected to the expert physician retained by plaintiff-intervenor (the United States). Defendants later withdrew that objection, but did so too late to reinstate the expert's audit inspections. (Decl. of Donna Brorby in Supp. of Mot. to Compel, Oct. 17, 1997.)

During the summer of 1997, defendants resisted discovery in this civil action on the grounds that they were entitled to have their motion for immediate termination of the Final Judgment decided based on the record previously established, without any further discovery at all. (See Def. Obj. to Request to Permit Entry; Def. Obj. to Request for Prod., July 31, 1997.) Even after the Fifth Circuit denied defendants' appeal and application for the writ of mandamus on August 6, 1997, defendants initially informed plaintiffs that defendants would not produce any more documents or permit inspections without a court order. (Decl. of Donna Brorby in Supp. of Mot. to Compel, Oct. 17, 1997, at 7-8.) It was in the context of these on-going discovery disputes that it was determined by this court that:

plaintiffs have diligently sought discovery in this matter since the Summer of 1996. Audits of health and treatment conditions in the prison system were arranged in December 1996. Inspections by counsel and experts were scheduled in January 1997. These attempts at discovery, both formal and informal, have been resisted by defendants. As late as July 31, 1997, defendants refused plaintiff's formal requests to produce documents or to permit entry of plaintiff's counsel and experts into the prison system. Defendants object to further discovery in this matter, because they believe the issue can be resolved by review of the documents recently produced by them concerning a number of system-wide statistics.

(Order, Oct. 31, 1997.) [FN20]

FN20. On October 15, 1997, plaintiffs filed a motion to compel entry to ascertain current prison conditions and to compel further production of documents. On October 17, 1997, in their response to defendants' motion for a "prompt ruling," plaintiffs gave a further declaration in support of their motion to compel discovery. Plaintiffs also gave factual assertions regarding the system's alleged unconstitutionality.

Meanwhile, after this court set the date for a management conference for the fact-finding hearing, defendants moved the court on September 23, 1997, for a "prompt" ruling on their motion to terminate, [FN21] and again invoked the automatic stay provision of the PLRA. Thus, during the month of October, 1997, defendants were ironically arguing for a "prompt ruling" on their motion while simultaneously resisting the discovery necessary to resolve that motion.

FN21. 18 U.S.C. 3626(e)(1).

This court issued a discovery order on October 21, 1997, allowing plaintiffs to conduct security and medical site visits as required by the PLRA. This order required that plaintiffs' counsel be allowed to inspect twenty units, with forty-five days total access to those units. The order also required separate access to twenty units by medical and psychiatric experts, in addition to review of the medical records for deceased inmates by those experts and access to all five regional medical facilities.

On December 8, 1997, a management conference was held in which both parties (and prospective intervenors) presented their preliminary legal and factual positions to the court. The disputed necessity for further discovery was discussed. [FN22]

FN22. Defendants' position at this management conference was that document production would be sufficient. (Trans. of Dec. 8, 1997 Mgt. Conf., at p. 24.)

On January 28, 1998, this court held the automatic stay provision of the PLRA, as amended in 1997, unconstitutional. [FN23] Also, the defendants' motion for a prompt ruling was granted and defendants' motion to stay this civil action was denied. Defendants gave notice of their appeal of these orders on February 23, 1998.

FN23. A few weeks later, plaintiff-intervenor, the United States, moved the district court to reconsider its determination that the automatic stay provision is unconstitutional. Plaintiffs filed their opposition to that motion on March 2, 1998.

On May 5, 1998, the second motion currently before this court was filed. Defendants, having filed a motion to terminate pursuant to the "immediate termination" provision of the PLRA on September 5, 1996, then moved to terminate the Final Judgment pursuant to the "two-year" provision ("(b)(1) provision") of the PLRA, 18 U.S.C. 3626(b)(1)(A)(iii).

Two days later, defendants moved this court to reconsider and vacate its earlier discovery motion. Defendants argued that the security site visits have "taken a tremendous toll of the state's resources, occupying the time and energy of hundreds of people, and requiring the production or inspection of thousands of pages of miscellaneous documentation on site." Defendants further complained that the scope of plaintiffs' discovery was exceeding the scope of the Final Judgment.

In June 1998, the legal and factual arguments of the parties began to take shape in the record. Defendants, in their supplement to their motion to terminate, filed June 17, 1998, provided the court with a collection of affidavits and data purportedly showing the constitutionality of the Texas prison system. At the same time, plaintiffs filed a consolidated memorandum opposing the motion to vacate which included a collection of declarations and exhibits purportedly showing the unconstitutionality of various aspects of the Texas prison system. Plaintiffs also outlined their constitution-based challenges to the PLRA itself.

On July 21, 1998, in its denial of defendants' motion to reconsider and vacate its discovery order, this court reasserted its intention to fulfill its mandate under the PLRA to consider whether or not on-going constitutional violations exist in the Texas prison system. This court, faced with defendants' ironically disingenuous objection to the pace and extent of plaintiffs' discovery inspections, again admonished defendants for their resistance to discovery:

Plaintiffs' efforts at discovery were blocked by defendants for a significant portion of the nineteen months referred to. It was the unfavorable resolution of defendants' own appeal which ended their intransigence as to the plaintiffs' right to conduct discovery. Furthermore, defendants have canceled site inspections and delayed the rescheduling. Defendants have also taken considerable time to produce death records requested by the plaintiffs. Despite these delays, plaintiffs have notified defendants that site inspections should be completed in September, 1998. [FN24] After examining the declarations of the parties, it is found that the plaintiffs are making a prompt effort to complete discovery as ordered by the United States Court of Appeals for the Fifth Circuit and this court.

FN24. This assessment did not include medical site visits, as only one out of a potential 25 medical site visits was scheduled or completed at that time.

(Order, July 21, 1998, p. 2.) In the same order, this court reasserted that "[n]o order will issue on the motion to terminate relief until a factual inquiry to determine its applicability is completed." (Id. at 1.)

In their objections to that order, defendants again expressed their disapproval of the decision to hold an evidentiary hearing on their motion to terminate, and argued that the issues should be resolved by summary judgment. Defendants supplemented these objections with a number of affidavits rebutting plaintiffs' allegations concerning the constitutionality of the Texas prison system.

The defendants next petitioned the Fifth Circuit on October 28, 1998, for the writ of mandamus compelling this court (1) to rule immediately on its pending motion to terminate on-going prospective relief and (2) to terminate extra- constitutional aspects of the 1992 Final Judgment. On November 4, 1998, this court set the fact-finding hearing on defendants motions to terminate for January 21, 1999. Although the Fifth Circuit expressly denied the petition for writ of mandamus, [FN25] it ordered this court to act within thirty-one days of the evidentiary hearing set for January 21, 1999, and to rule on defendants' motions not later than March 1, 1999. On November 20, 1998, the Fifth Circuit ordered this court to grant defendant-intervenors' motion to intervene. [FN26]

FN25. The Fifth Circuit decision stated "We would be inclined to grant the writ of mandamus and order the district court to rule instanter, were we not aware that the district court has scheduled its evidentiary hearing in this matter just one month from now ..." (5th Cir. Order, Dec. 16, 1998.)

FN26. An ongoing issue in this civil action has been Texas Representative John Culberson and Texas Senator J.E. "Buster" Brown's attempts to intervene in this civil action in support of the defendants.

Thus, this court arrived at a fact-finding hearing, albeit necessarily truncated, [FN27] to consider allegations of on-going constitutional violations in the Texas prison system. It proved regrettable that an issue as complex and massive as the constitutionality of various policies and practices of a system incarcerating approximately 140,000 inmates had to be truncated and compressed into a few weeks. In order to comply with the Fifth Circuit's March 1, 1999, deadline, this court limited each party to fifty hours of testimony. Testimony began on January 21, 1999, and ended on February 12, 1999.

FN27. Before the Fifth Circuit's mandate, the plaintiffs estimated that their case-in-chief would last four to six weeks, and the hearing itself would last two to three months.

II. SUMMARY AND CLARIFICATION OF ISSUES

A. The Parties' Positions [FN28]

FN28. It should be noted that the abbreviated schedule imposed by the Fifth Circuit prevented the parties from fully briefing the court. Both by written order and from the bench, the court invited all parties to brief it on the legal and factual issues arising out of this hearing. The court also sought evidentiary summaries from the parties. Plaintiffs filed several partial briefs in the week before the deadline for this decision and acknowledged the effect of the impending deadline:

Plaintiffs apologize to the Court for their piecemeal and incomplete briefing that has been made necessary by the tight timetable imposed by the Fifth Circuit and the limits on their counsels' ability to review and pull together the evidence. Mindful of the deadline the Court faces to decide defendants' motion by March 1, plaintiffs apologize for not having gotten complete briefing to the Court sooner. The record is so large and the issues so complex that plaintiffs were unable to file their complete brief at least a week before the Court's deadline as they intended. In fact, even with the briefing and evidence summaries that have been and are being filed, plaintiffs are leaving numerous factual and legal issues unbriefed. The deadline this case has been under has precluded the kind of comprehensive and thoughtful briefing that the Court and this case deserve, just as it hampered the completion of discovery and post-discovery trial preparation.

(Pl.'s Post-Tr. Brf-Class Def. and Rem., Feb. 26, 1999.) In addition to their reply in support of their motion for judgment, defendants filed only a response to plaintiffs' post-trial brief, on the Friday before this court's Monday deadline. (See Def.'s Supp. Mot. for J. and Resp. to Pl. Post-Tr. Brf., Feb. 26, 1999.)

The essence of defendants' [FN29] position is that the PLRA, 18 U.S.C. 3626, requires termination of this court's involvement with the Texas prison system. As outlined in the joint pre-trial order submitted to this court on January 5, 1999, defendants contend that they are entitled to relief from the Final Judgment under 18 U.S.C. 3626(b)(1) and (b)(2) for the following reasons: (1) the 1992 Final Judgment does not comply with the requirements of 18 U.S.C. 3626(a)(1) and (b)(3), in that it does not contain findings of any ongoing or current violation of a Federal right; (2) the 1992 Final Judgment contains extra-constitutional relief; (3) the plaintiffs have not established the existence of current and ongoing violations of a Federal right; and (4) the prospective relief contained in the 1992 Final Judgment is not limited to the end that it extend no further than necessary to correct the violations of a Federal right and is not limited so as to be narrowly drawn and the least intrusive means to correct the violation of a Federal right. Defendants further argue that the absence of a finding of a current and ongoing violation of a Federal right in the Final Judgment causes it to be barred by the jurisdictional limits of the Tenth and Eleventh Amendments of the Constitution of the United States. Finally, defendants reject plaintiffs' contentions that the termination provisions of the PLRA are impermissibly retroactive, that defendants have waived their ability to seek the 1992 Final Judgment's termination, and that the PLRA violates the Constitution of the United States.

FN29. Henceforth, the term "defendants" will refer to both state defendants and defendant-intervenors, unless otherwise indicated. The Texas Department of Criminal Justice and its subordinate, the Texas Department of Criminal Justice-Institutional Division, will be designated as TDCJ.

The gravamen of plaintiffs' position is that the presence of ongoing constitutional violations in the Texas prison system requires continued oversight by this court. Plaintiffs begin their contentions with legal objections to the PLRA itself. Plaintiffs argue that the PLRA does not, and may not, apply retroactively to the 1992 Final Judgment. Were it construed to be applicable to that order, plaintiffs maintain, the PLRA would be unconstitutional as a violation of the separation of powers doctrine, as a denial of due process, and as a deprivation of equal protection.

If the PLRA is constitutional and applicable to this civil action, plaintiffs insist that they are entitled under the PLRA to continuing prospective relief that "remains necessary to correct a current and ongoing violation of [their] Federal right[s], extends no further than necessary to correct the violation[s] of the[ir] Federal right[s] and ... that is narrowly drawn and the least intrusive means to correct the violations." 18 U.S.C. 3626(b)(3). More specifically, defendants are further accused by plaintiffs of deliberate indifference to prisoners' serious physical and mental health care needs. Plaintiffs also complain that defendants deprive administratively segregated prisoners of the minimum necessities of life and punishment of inmates without due process. Defendants are also accused by plaintiffs of failing to meet their Eighth Amendment duty to ensure prisoners reasonable safety from other prisoners and to curtail malicious and sadistic uses of force by correctional officers. Under the plaintiffs' theory, crowding and understaffing prevent defendants from curing these constitutional violations.

B. The Proper Scope of this Decision

Defendants have consistently argued that the issues before the court in this matter should be limited to those outlined in the 1992 Final Judgment. Defendants point out that, as a result of the 1992 Final Judgment, this court lifted all injunctive relief relating to the following areas: classification, maintenance of facilities, Spanish-English interpreters, provision of necessities, major structural deficiencies, the special master, programs for physically handicapped inmates, programmatic and recreational activities, monitoring by plaintiffs' counsel, work health and safety, and mentally retarded offenders programs. The 1992 Final Judgment retained injunctive relief in the following areas: staffing, access to courts, health services, support services inmates, contact visitation, psychiatric services, discipline, crowding, death row, administrative segregation, internal monitoring and enforcement, and use of force. As defendants acknowledge, these are areas in which plaintiffs could properly offer testimony in the fact-finding hearing. This court wholeheartedly agrees with, and accepts, the Fifth Circuit's admonition that the district court's decision

should not entail a general overall examination of the prison system, but should simply be focused on those continuing injunctive orders (concerning the 'eight substantive issues') contained in the December 1992 judgment. Ruling on the motion is not an occasion to examine other areas of prison conditions or practices, neither the "nine substantive areas" as to which the December 1992 judgment "resulted in complete relief from judgment and termination of the court's jurisdiction" nor areas not dealt with one way or the other in the December 1992 judgment.

(5th Cir. Order, Aug. 6, 1997.) After reviewing the sum total of the evidence presented to the court, it is determined that plaintiffs have in fact limited their presentation of evidence to the areas of injunctive relief remaining after the 1992 Final Judgment.

[1] In light of defendants' contentions, however, the propriety of one area of testimony merits further clarification. Defendants have urged the court to disregard evidence concerning TDCJ's unit classification committees on the grounds that the 1992 final judgment contains no remaining relief relating to classification. In their Motion for Judgment, defendants state:

Plaintiffs have put on numerous inmate witnesses who have complained that their requests to the unit classification committees (UCCs) for transfer or reclassification to safekeeping or protective custody were improperly denied, subjecting them to alleged inmate assaults. Plaintiffs' experts have also testified that these alleged improper classification decisions may not have occurred but for the loss of 200-300 classification case manager positions in the 1995 budget.

(Def. Mot. For J., Feb. 4, 1999, at 7.)

Defendants are correct to point out that orders regarding the prisoner classification system were vacated with the 1992 Final Judgment. This court was led to believe that the classification system in place at that time would remain in place in some form or another, and made factual findings to that effect:

The prisoner classification system developed by the Institutional Division of the Texas Department of Criminal Justice ("TDCJ-ID") has become an important and entrenched part of the operation of TDCJ-ID. James A. Collins, Director of the TDCJ-ID, testified that, like security staffing, classification is one of the primary ingredients for operating a prison system successfully. The thrust of his testimony was that TDCJ-ID intends to maintain its current classification system, although that system undoubtedly will evolve over time as conditions change and prison managers improve and redefine it.

(1992 Mem. Op.) It was found that TDCJ had, in actuality, greatly improved its classification system, which at the time of the original trial in this case focused exclusively on age, size, and the number of prior incarcerations. By the time of the settlement negotiations in the early 1990's, the classification system provided prison managers with detailed information on prisoners and established reasonable criteria for grouping prisoners based on their needs, security and custody levels, medical condition, and relevant physical characteristics. In light of those circumstances, it was concluded that "TDCJ- ID is likely to continue to employ this system of classification, or one equally appropriate for the operation of safe and secure prisons." (1992 Mem. Op.).

Due to circumstances beyond prison officials' control, [FN30] TDCJ's system of classification of prisoners has apparently changed dramatically in recent years. The classification system contemplated by the 1992 Final Judgment effectively no longer exists. In 1995, there were 328 unit classification staff, with a ratio of prisoners to unit classification staff of 233 to one. That is, each unit classification officer was responsible for maintaining safe and appropriate placement for 233 inmates. Today, there are approximately 60 such classification staff. Each unit classification officer is responsible for approximately 1,250 inmates' placement. Pl.Ex. 11.

FN30. The classification was apparently restructured (so as to be virtually impotent) as a budget-cutting measure by the Texas Legislature several years ago.

As defendants point out, the simple fact that the structure of the classification has changed, even if to the detriment of inmates' interests, does not reopen those orders and agreements regarding classification that were vacated by the 1992 Final Judgment. Defendants have correctly noted that "classification," per se, is not an issue properly before the court.

Defendants' further assertion that plaintiffs' testimony regarding the improper denial of their requests for safekeeping or protective custody should be ignored by this court is, however, incorrect. In making this claim, defendants have mistakenly attempted to pigeon-hole large portions of plaintiffs' evidence into the category of "classification" when such evidence is actually appropriately viewed as evidence related to "crowding" and "staffing"-areas in which the court has in fact retained injunctive relief. The various titles for the viable issues in the 1992 Final Judgment are not rigidly exclusive. It is possible, and highly probable, that much of the testimony in this matter, such as that regarding inmate requests for protection, could fall under several of those headings. Overcrowding and understaffing, in the event such conditions were found, could very easily cause defendants to fail and refuse to consider and act reasonably on information inmates give them about substantial risks of serious harm they or other inmates face. In that event, the constitutionality of that condition would have to be assessed.

Furthermore, plaintiffs have not put the classification system, in itself, directly at issue. Rather, the loss of the two to three hundred classification case managers has been offered as a rational explanation for the alleged failure of the prison system to provide reasonable safety to inmates. For these reasons, defendants' contention that "failure to protect claims are not properly at issue in this hearing" is without merit.

III. LEGAL AND CONSTITUTIONAL CHALLENGES TO THE PLRA

Plaintiffs first oppose termination of the consent decree with a series of legal contentions aimed at removing the 1992 Final Judgment from the scope of the PLRA. First, they argue that the PLRA does not apply retroactively to consent decrees issued before the statute's date of passage. The plaintiffs go on to assert that if the PLRA does, in fact, apply retroactively-and thereby applies to the 1992 Final Judgment in this civil action-it violates the separation of powers doctrine, due process, and equal protection under the Constitution. Defendants contest all of plaintiffs' legal arguments.

A. Retroactivity

Plaintiffs' threshold assertion-that the PLRA does not apply to court orders signed before its enactment-is without merit because it is contradicted by the plain language of the statute. [FN31] The PLRA expressly addresses the orders "issued on or before the date of enactment of the Prison Litigation Reform Act ..." 18 U.S.C. 3626(b)(1)(iii). Plaintiffs cite the Supreme Court's decision in Landgraf v. USI Film Products as creating a presumption against retroactive legislation. 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). That presumption, however, has no bearing here. In determining whether a statute will be applied retroactively, a "court's first task is to determine whether Congress has expressly prescribed the statute's proper reach." Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. Congress has done so in the PLRA. Plaintiffs' argument fails, therefore, as the termination provisions of the PLRA at issue here are expressly retroactive. It is precisely this retroactivity, however, that gives additional substance to plaintiffs' next legal argument.

FN31. See Pub.L. No. 104-134, 802(b)(1), 110 Stat. 1321 (1996). The text of this subsection of the PLRA reads as follows: "(b) Application of Amendment.-(1) In general.-Section 3626 of title 18, United States Code, as amended by this section, shall apply with respect to all prospective relief whether such relief was originally granted or approved before, on, or after the date of the enactment of this title."

B. Separation of Powers

The crux of plaintiffs' separation of powers claim concerns the effect of the legislatively-enacted PLRA termination provisions on the judicially-entered 1992 Final Judgment in this civil action. Under the separation of powers principle, final judgments of the judicial branch are protected from legislative interference. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227-28, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). Congress may neither reopen a court's final judgment, id. at 227, 115 S.Ct. 1447, nor prescribe the outcome of a decision in a particular civil action without changing the underlying substantive law applicable to the case, U.S. v. Klein, 13 Wall. 128, 80 U.S. 128, 20 L.Ed. 519 (1871). Because the PLRA could overturn, by "immediate termination," the 1992 Final Judgment of this court, the statute's constitutionality is clearly called into question.

The final judgment at issue here is a consent decree that developed as a settlement of plaintiffs' previously validated claims of unconstitutional practices and conditions in the Texas prison system. See Ruiz, 503 F.Supp. 1265. Consent decrees are a common judicial remedy in prison litigation. See, e.g., Carty v. Farrelly, 957 F.Supp. 727 (D.Virgin Islands 1997); Hadix v. Johnson, 933 F.Supp. 1360 (E.D.Mich.1996), rev'd, 144 F.3d 925 (6th Cir.1998); United States v. Michigan, 989 F.Supp. 853 (W.D.Mich.1996); Benjamin v. Jacobson, 935 F.Supp. 332, 342 (S.D.N.Y.1996), aff'd in part and rev'd in part, 124 F.3d 162 (2d Cir.1997). Consent decrees are essentially court-adopted settlement agreements. Prison officials and prisoners often negotiate solutions to prisoners' complaints in order to avoid not only litigation, but also the potential that a court will adjudicate that state prisons are being operated unconstitutionally. If the presiding judge approves the agreement, he or she executes it, so that it may be enforced as a judicial order. Consent decrees, therefore, offer defendants a means of avoiding litigation without admitting wrongdoing. Just such a settlement process occurred in this civil action. The 1992 Final Judgment targeted by the PLRA represents this court's adoption of, as a final judgment, the parties' own negotiations in Ruiz v. Estelle.

1. Separation of Powers Challenges to the PLRA

At least six times, federal district courts have determined that the "immediate termination" provision [FN32] of the PLRA [FN33] is unconstitutional as a violation of the separation of powers doctrine. Denike v. Fauver, 3 F.Supp.2d 540 (D.N.J.1998); Gavin v. Ray, 1996 WL 622556 (S.D.Iowa 1996), rev'd sub nom. Gavin v. Branstad, 122 F.3d 1081 (8th Cir.1997); Hadix v. Johnson, 947 F.Supp. 1100 (E.D.Mich.1996), rev'd, 133 F.3d 940 (6th Cir.1998); Inmates of the Suffolk Co. Jail v. Sheriff of Suffolk Co., 952 F.Supp. 869, 882 (D.Mass.1997) (alternative holding ); McClendon v. Albuquerque, 29 F.Supp.2d 1267 (D.N.M.1996); Taylor v. Arizona, 972 F.Supp. 1239 (D.Ariz.1997), aff'd, 143 F.3d 1178 (9th Cir.1998), reh'g granted, opinion withdrawn, 158 F.3d 1059 (9th Cir.1998). Thus far, the only circuit court to uphold a district court's finding that the termination provision of the PLRA is unconstitutional, however, was the United States Court of Appeals for the Ninth Circuit in a decision that has since been withdrawn. Taylor v. United States, 143 F.3d 1178 (9th Cir.1998), reh'g granted, opinion withdrawn, 158 F.3d 1059 (9th Cir.1998) On somewhat varying theories, the First, Second, Sixth, Eighth and Eleventh Circuits have upheld the constitutionality of the PLRA termination provisions. See Benjamin v. Jacobson, 124 F.3d 162 (2nd Cir.1997); Dougan v. Singletary, 129 F.3d 1424, 1426 (11th Cir.1997); Gavin v. Branstad, 122 F.3d 1081 (8th Cir.1997); Hadix v. Johnson, 133 F.3d 940 (6th Cir.1998); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir.1997); Plyler v. Moore, 100 F.3d 365 (4th Cir.1996), cert. denied, 520 U.S. 1277, 117 S.Ct. 2460, 138 L.Ed.2d 217 (1997). And yet, perhaps the most recent court to consider the issue, the United States District Court for the District of New Jersey, adjudged that 3626(b)(2) of the PLRA "constitutes a violation of separation of power principles." Denike v. Fauver, 3 F.Supp.2d 540, 548 (D.N.J.1998).

FN32. As the separation of powers ramifications apply equally to both, 18 U.S.C. 3626(b)(1) and (b)(2) will be treated together here.

FN33. Even more frequently, federal district courts have struck down, or ignored, the "automatic stay" provision of the PLRA, 18 U.S.C. 3626(e)(2), as an unconstitutional infringement on an exclusively judicial role. See Glover v. Johnson, 957 F.Supp. 110 (E.D.Mich.1997); Hadix v. Johnson, 933 F.Supp. 1360 (E.D.Mich.1996), rev'd, 144 F.3d 925 (6th Cir.1998); McClendon v. Albuquerque, 29 F.Supp.2d 1267 (D.N.M.1996).

While its ramifications for the PLRA are obviously highly contested, the importance of the separation of powers doctrine is not. The separation of powers doctrine is a fundamental tenet of our democratic government. The doctrine is "basic and vital, namely, to preclude a commingling of the ... essentially different powers of government in the same hands." O'Donoghue v. U.S., 289 U.S. 516, 530, 53 S.Ct. 740, 77 L.Ed. 1356 (1933) (citations omitted ). Although it is never explicitly referenced in the Constitution, the axiom that the judicial, legislative, and executive branches must not usurp each other's power finds a reverential home in the decisions of the Supreme Court. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); INS v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 590-91, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949).

2. Congress's Inability to Reopen an Article III Court's Final Judgment

[2] In light of the collective wisdom of a number of Supreme Court decisions, the PLRA's constitutional shortcomings are clear. The first, Plaut v. Spendthrift Farm, Inc., holds that an Article III court's final judgment may not be reopened by Congress. 514 U.S. 211, 229, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995).

Plaut involved Congress's attempted reinstatement of certain securities fraud actions that had been dismissed as time-barred under a previous Supreme Court decision. Four years prior to the Plaut decision, in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, the Supreme Court held that litigation under 10(b) of the Securities and Exchange Act and the SEC's Rule 10b-5 "must be commenced within one year after the discovery of the facts constituting the violation and within three years of such violation." 501 U.S. 350, 364, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). This decision obviously imposed a shorter-than-expected limitations period on many litigants. In 1991, Congress enacted a statute that not only changed the statute of limitations for 10(b), but also purportedly applied retroactively, so as to reverse the numerous judicial dismissals on the merits that occurred in the wake of Lampf. Plaut, 514 U.S. at 214, 115 S.Ct. 1447. Hence, the legislation attempted to reopen the courts' final judgments. Id. at 214-215, 115 S.Ct. 1447.

Citing Thomas Jefferson, James Madison, Alexander Hamilton, Sir William Blackstone and Abraham Lincoln, id. at 219-26, 115 S.Ct. 1447, the Supreme Court in Plaut noted that "[t]he Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers," id. at 219, 115 S.Ct. 1447, and felt a "sense of a sharp necessity to separate the legislative from the judicial," id. at 221, 115 S.Ct. 1447. From their own words, it is abundantly clear that the Framers sought to insulate final judgments from legislative revision. Id. at 240, 115 S.Ct. 1447.

To this day, "it remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another." Loving v. U.S., 517 U.S. 748, 757, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). "Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government." Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948). "[N]o decision of any court of the United States can, under any circumstances, ... be liable to a revision, or even suspension, by the Legislature itself, in whom no judicial power of any kind appears to be vested." Hayburn's Case, 2 U.S. (2 Dall.) 408, 413, 1 L.Ed. 436 (1792).

Noting that its previous decisions had "uniformly provided fair warning that such an act exceeds the powers of Congress," the Supreme Court in Plaut declared that "[w]hen retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than 'reverse a determination once made, in a particular case.' " 514 U.S. at 225, 115 S.Ct. 1447 (citations omitted )(quoting THE FEDERALIST NO. 81, at 545 (Hamilton) (J. Cooke, ed., 1961)). Under the Constitution of the United States, Congress simply has no power to set aside a court's final judgment.

The PLRA, if applied to the 1992 Final Judgment in this civil action, would affect just such an unconstitutional reversal of a judicial final judgment. The two termination provisions of the PLRA would mandate the revision of a final judgment entered by this court four years before the statute was signed into law. Like the Supreme Court, this court "know[s] of no previous instance in which Congress has enacted retroactive legislation requiring an Article III court to set aside a final judgment, and for good reason. The Constitution's separation of legislative and judicial powers denies it the authority to do so." [FN34] Plaut, 514 U.S. at 240, 115 S.Ct. 1447.

FN34. And, the fact that the 1992 Final Judgment's beneficiaries are prison inmates does not, of course, justify such retroactive legislation today.

3. The Consent Decree as a Final Judgment

[3] The several circuit courts that have declined to find the PLRA termination provisions unconstitutional have done so not by disputing the separation of powers doctrine, but instead by questioning whether a consent decree entered in prison litigation qualifies as a "final judgment" for the purposes of that doctrine. Dougan v. Singletary, 129 F.3d 1424, 1426 (11th Cir.1997); Gavin v. Branstad, 122 F.3d 1081 (8th Cir.1997); Hadix v. Johnson, 133 F.3d 940 (6th Cir.1998); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir.1997); Plyler v. Moore, 100 F.3d 365 (4th Cir.1996), cert. denied, 520 U.S. 1277, 117 S.Ct. 2460, 138 L.Ed.2d 217 (1997). This court respectfully disagrees with these determinations. See Denike, 3 F.Supp.2d 540. A consent decree has all the finality of a final judgment, and is therefore immune to legislative tampering.

The Supreme Court clearly established consent decrees' status as a final judgment in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 391, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). The Supreme Court held that a consent decree "is subject to the rules generally applicable to other judgments and decrees." Id. at 378, 112 S.Ct. 748.

In a situation not unlike the one before this court today, that decision involved a consent decree entered by a federal court to settle inmates' claims of constitutional violations. As in the Ruiz litigation, the Rufo district court had previously found constitutional violations in a detention facility. Id. at 372-73, 112 S.Ct. 748. The Supreme Court was considering the legitimacy of proposed modifications to the consent decree. Id. Before establishing the standard for modification of a consent decree, the Court addressed the somewhat nebulous nature of consent decrees, generally:

A consent decree no doubt embodies an agreement of the parties and thus in some respect is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.

Id. at 378, 112 S.Ct. 748. Simply stated, in the Supreme Court's words, "a consent decree is a final judgment that may be reopened only to the extent that equity requires." Id. at 391, 112 S.Ct. 748. And, as the Fifth Circuit has stated, "[t]he entry of a consent decree is more than a matter of agreement among litigants. It is a judicial act." LULAC v. Clements, 999 F.2d 831, 845 (5th Cir.1993).

Hence, in accordance with the separation of powers doctrine, such a "reopening" in the interest of equity may be effected only by a court, not by Congress. Rule 60(b) of the Federal Rule of Civil Procedure expressly allows a court to reopen a final judgment in certain delineated situations and other "extraordinary circumstances." Fed. R. Civ. Pro. 60(b). That rule, however, far from granting Congress any exemption from the separation of powers doctrine, "merely reflects and confirms the courts' own inherent and discretionary power...." Plaut, 514 U.S. at 233, 115 S.Ct. 1447. The PLRA, therefore, represents an unconstitutional intrusion on the role of Article III courts.

4. The Final Judgment's Protection of Inmates' Private Constitutional Rights

The crux of the discrepancy between courts that have upheld and those that have struck down the termination provisions of the PLRA is the relative "finality" of a consent decree. In the face of Plaut 's clear declaration that "[t]he separation of powers violation here, if there is any, consists of depriving judicial judgments of the conclusive effect that they had when they were announced ...," 514 U.S. at 228, 115 S.Ct. 1447, proponents of the termination provisions' constitutionality have seized on an overly-narrow interpretation of the 1855 decision Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855). Citing Wheeling Bridge, the Plaut Court did in fact distinguish the unconstitutional statute before it from "legislation ... that altered the prospective effect of injunctions entered by Article III courts." 514 U.S. at 232, 115 S.Ct. 1447. In the context of prison litigation consent decrees, Wheeling Bridge is, therefore, sometimes cited for the proposition that Plaut 's final judgment analysis is inapplicable to prospective relief, because such relief is not considered a "final judgment." See, e.g., Hadix, 133 F.3d 940. A careful review of the Wheeling Bridge decision, however, reveals that it supports the finality of the 1992 Final Judgment in the Ruiz litigation.

In Wheeling Bridge, the Supreme Court was faced with a petition for an injunction to prevent the rebuilding of a low bridge over a navigable river. 59 U.S. at 429. In response to an earlier case brought by the State of Pennsylvania in which a court granted injunctive relief requiring that the bridge be restructured so as to allow free navigation under it, Congress passed a statute declaring the bridge lawful. Id. When the bridge was destroyed in a storm, a new petition was filed pursuant to the original injunction to stop the bridge's reconstruction. Id. The Court's decision to refuse the second injunction was based, in part, on a distinction between money judgments and executory injunctions. Wheeling Bridge, 59 U.S. at 431-32. A money judgment, said the Court, is unaffected by the subsequent law. Id.

"But that part of the decree, directing the abatement of the obstruction, is executory, a continuing decree, which requires not only the removal of the bridge, but enjoins the defendants against any reconstruction or continuance. Now, whether it is a future existing or continuing obstruction depends upon the question whether or not it interferes with the right of navigation. If, in the meantime, since the decree, this right has been modified by the competent authority, so that the bridge is no longer an unlawful obstruction, it is quite plain the decree of the court cannot be enforced. There is no longer any interference with the enjoyment of the public right inconsistent with law...."

Id. (emphasis added ).

Two aspects of this decision clearly distinguish it from the situation at hand. First, faced with the changed law in Wheeling Bridge, the Supreme Court determined that because Congress had established the right of free navigation in the first place, it could in fact alter those standards. 59 U.S. at 431. There is no question that Congress can change its own laws. And, when those laws are the foundation for an injunction's prospective relief, that relief must be revisited by the issuing court.

As regards the 1992 Final Judgment, however, the Constitution-not Congress-is the source of the underlying rights that the consent decree remedied. All injunctive relief entered by this court since those findings of constitutional violations, has been predicated on correcting those violations. The 1992 Final Judgment was entered by this court as a consent decree, at the request of the parties, as a means of resolving plaintiffs' allegations of constitutional violations without further litigation. Under Wheeling Bridge, Congress may revise its own laws, thereby affecting the viability of a court's prospective relief. Congress may not, however, revise the Constitution.

Second, the Wheeling Bridge Court distinguishes between "public" and "private" rights. Id. at 431-32. Rather than declare that a judgment's finality depends only on whether it is prospective relief or a money judgment, the Wheeling Bridge Court explicitly emphasizes the private/public right distinction. Id. A number of courts, including the Supreme Court, have interpreted Wheeling Bridge as making this distinction. See, e.g. Hodges v. Snyder, 261 U.S. 600, 603-04, 43 S.Ct. 435, 67 L.Ed. 819 (1923); Johnston v. Cigna Corp., 14 F.3d 486, 492 (10th Cir.1993); Daylo v. Administrator of Veterans' Affairs, 501 F.2d 811, 818 (D.C.Cir.1974). In Hodges, the Supreme Court explained that

it is true ... the private right of parties which have been vested by the judgment of a court cannot be taken away by subsequent legislation, but must be thereafter enforced by the court regardless of such legislation.... This rule, however, as held in the Wheeling Bridge case, does not apply to a suit brought for the enforcement of a public right, which, even after it has been established by the judgment of the court, may be annulled by subsequent legislation and should not be thereafter enforced....

261 U.S. 600, 603-04, 43 S.Ct. 435, 67 L.Ed. 819.

Prospective relief of a public right-one established in the first place by Congress, such as the right to navigate a river-may, of course, be altered by Congress's revision of that underlying right. Wheeling, at 431. Congress has the power to alter prospective relief only where it has plenary power over the underlying law-the realm of "public" rights. The consent decree at issue before this court, however, involves private constitutional rights-those that Congress may not revise. The Wheeling Bridge Court itself stated:

it is urged, that the act of congress cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby.... This, as a general proposition, is certainly not to be denied, especially as it respects adjudication upon the private rights of parties. When they have passed into judgment the right becomes absolute, and it is the duty of the court to enforce it.

59 U.S. at 431. Almost a century after the Wheeling Bridge decision, the Supreme Court made this distinction abundantly clear in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.:

[There is] a critical difference between rights created by federal statute and rights recognized by the Constitution....[S]uch a distinction seems to us to be necessary in light of the delicate accommodations required by the principle of separation of powers reflected in Art. III. The constitutional system of checks and balances is designed to guard against "encroachment or aggrandizement" by Congress at the expense of other branches of government. But when Congress creates a statutory right, it clearly has the discretion, in defining that right, to create presumptions, or assign burdens of proof, or prescribe remedies.... No comparable justification exists, however, when the right being adjudicated is not of congressional creation. In such a situation, substantial inroads into functions that have traditionally been performed by the Judiciary cannot be characterized merely as incidental extensions of Congress' power to define rights that it has created. Rather, such inroads suggest unwarranted encroachments upon the judicial power of the United States, which our Constitution reserves for Art. III courts.

458 U.S. 50, 83-84, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (plurality opinion ) (citations and footnote omitted ) (quoting Buckley v. Valeo, 424 U.S. 1, 122, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)). [FN35]

FN35. Even more recently, the Supreme Court rejected a congressional attempt to make "a substantive change in constitutional protections" of the First Amendment in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 2159, 138 L.Ed.2d 624 (1997).

Thus, a consent decree based on private constitutional rights, even containing prospective relief, becomes final upon adoption by the court. There can be no doubt that "[e]ven when a branch does not arrogate power to itself, ... the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties." Loving v. U.S., 517 U.S. 748, 757, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). The separation of powers doctrine, therefore, prohibits Congress from overturning the 1992 Final Judgment entered in this civil action. With the termination provisions of the PLRA, "Congress has exceeded its authority by requiring the federal courts to exercise 'the judicial Power of the United States,' in a manner repugnant to the text, structure and traditions of Article III." See Plaut, 514 U.S. at 217-218, 115 S.Ct. 1447 (quoting U.S. Const., Art. III, 1).

5. Congress's Inability to Decide a Discrete Group of Cases

[4] Independently from, and in addition to, the Plaut axiom that Congress may not reopen a court's final judgment, the PLRA violates the separation of powers principle that Congress may not prescribe a rule of decision in a discrete group of Article III cases. United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871). That is, the PLRA would go further than simply reopening a court's final judgment, it would actually usurp the court's decision in the controversy. The Supreme Court, in Klein, expressly rejected such legislative adjudications. Id.

Klein grew out of a 1863 statute that allowed individuals to recover property that was seized by the government during the Civil War only upon showing proof that they did not aid or comfort the South during the war. Id. at 131-33. In response to a Supreme Court decision that a presidential pardon fulfilled the statute's requirement, Congress legislated that a pardon was actually proof that the person did in fact aid the South. Klein, 80 U.S. at 133. The statute thereby stripped the jurisdiction of any court hearing such a case if proof of a pardon was presented. Id. The Supreme Court struck down the law as unconstitutional. Id. at 146-47. And, in words appropriate to the PLRA's relation to this court's 1992 Final Judgment, the Supreme Court stated:

It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.... What is this but to prescribe a rule for the decision of a cause in a particular way? ... Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the judicial department in the cases pending before it? ... We think not.... We must think that Congress has inadvertently passed the limit which separates the legislative power from the judicial power.

Id. at 146-147.

The unacceptable situation before the Supreme Court in Klein was that a judicial institution was required to dismiss a case upon proof of certain evidence: in that case, a pardon. Similarly, under the PLRA, the judicial institution must terminate relief upon proof of certain evidence: here, the absence of particular findings. See 18 U.S.C. 3626(b). The limitations on termination in 18 U.S.C. 3626(b)(3), rather than preserve the court's involvement, only further remove the court from the judicial process and replace it with legislation. Because in most cases there was no record made at the time of the final judgment, it is impossible for a court to later make such findings. Under the PLRA, if there were actual violations of the consent decree by the defendants, the plaintiff class would have to start from scratch demonstrating, anew, constitutional violations in the prison system. Through its intrusive provisions, the PLRA effectively prohibits meaningful discovery, hearing, briefing and decision-making, thereby violating the separation of powers doctrine as presented by Klein.

6. The PLRA's Ambiguous Drafting

[5] A number of courts have commented on the PLRA's poor drafting. And, having attempted to make sense of the statute, this court agrees that "[t]he PLRA is not a paragon of clarity." Inmates of Suffolk Co. Jail v. Rouse, 129 F.3d 649, 654 (1st Cir.1997). In its definition sections, the PLRA "contradicts the usual understanding of both 'relief' and 'consent decree.' " Id. According to Black's Law Dictionary, a consent decree is a "judgment entered by consent of the parties whereby the defendants agree to stop alleged illegal activity without admitting guilt or wrongdoing," 6 th ed.1990 at 410, and a "judgment" is a "final decision of the court resolving the dispute and determining the rights and obligations of the parties." Id. at 841-42. In the PLRA, "Congress conflated the two terms when it described consent decrees as a form of relief rather than as a judgment that engenders relief." Rouse, 129 F.3d at 654. In light of these drafting problems, it is beyond dispute that "[t]he statute's ambiguity is daunting because its consequences are significant." Benjamin, 124 F.3d at 168. Ironically, to some respected jurists, it is precisely this ambiguity that preserves the PLRA's constitutionality.

The Second Circuit, in Benjamin v. Jacobson, capitalized on the ambiguity in the PLRA to avoid the troubling constitutional questions presented by it. Id. That court asserted that the PLRA termination provisions could be read either to "limit the jurisdiction of federal courts so that these courts could not in the future enforce past consent decrees ...," or to "render null and void all past federally approved prison consent decrees unless these decrees met the requirement of being narrowly tailored to a federal right." Id. at 166-167 (emphasis added ). The former of these readings preserves the statute's constitutionality because Congress may alter federal courts' jurisdiction in some situations. See Yakus v. U.S., 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). However, this interpretation forces the court to read the termination provisions, which call for "termination of prospective relief," as somehow preserving the consent decree while removing it from federal jurisdiction. The PLRA nowhere distinguishes between a federal court's jurisdiction over prospective relief and the consent decree giving rise to that relief. On the other hand, the latter of the two readings (which would make the consent decree null and void) would, at the very least, "raise issues of when and how the legislature can affect past judgments in the light of fundamental principles of separation of powers." Benjamin, 124 F.3d at 168.

Thus, the Second Circuit's analysis exposes the true conundrum of the PLRA termination provisions. A court must either utilize tortured statutory interpretation to reach a far-fetched legal fiction, or strike down the provisions as violations of the Constitution of the United States. [FN36] As the price for maintaining the law's constitutionality, the Second Circuit chose to somehow transform the PLRA's termination provisions into jurisdictional ones.

FN36. This court is well aware of the canon of judicial review that requires that statutes be construed to avoid constitutional questions if and when such a construction is "fairly possible." St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780, 101 S.Ct. 2142, 68 L.Ed.2d 612 (1981); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932); see also DeBartolo v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988); N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 81 L.Ed. 893 (1937). It is just that principle that the Second Circuit relied upon to reach its unfounded interpretation of the PLRA. Although it recognizes ambiguities in the statute, this court has determined that it is neither "fair" nor "possible" to use this canon of judicial review to create phantom jurisdictional provisions in the PLRA.

Based on the plain language of the statute, this court must agree with those courts that have found no fair basis for such an interpretation. See Dougan, 129 F.3d at 1426 n. 4 (11th Cir.1997). And, to assume that the plaintiffs could enforce a validly negotiated consent decree in state court after the issuing federal court "terminated prospective relief" is, at best, unrealistic. Thus, given the fact that the PLRA's constitutionality "depends on [an] interpretation of the termination provision as doing no more than limiting the remedial jurisdiction of the federal courts," id. at 173, this court agrees with those who have determined that the termination provisions of the PLRA violate the separation of powers doctrine of the Constitution of the United States.

7. The PLRA's Unambiguous Legislative History

Faced with ambiguity in the meaning of a statute, it is not uncommon for a court to look for guidance to the legislative history of the law. Unfortunately, the legislative history of the PLRA is relatively sparse. What record there is, however, does not indicate that Congress meant the PLRA as merely a limitation on federal jurisdiction.

Eventually signed into law as an attachment to an omnibus appropriations bill, the law was conceived in the House of Representatives as the Violent Criminal Incarceration Act of 1995. H.R. 667. [FN37] The sum total of the documented consideration of the proposal is little more than a "single Senate hearing before the Judiciary Committee, one substantive House Report, and some floor debate ..." Benjamin, 935 F.Supp. at 340, aff'd in part, rev'd in part, 124 F.3d 162 (2d Cir.1997).

FN37. This bill represented the combination of the Stopping Abusive Prisoner Lawsuits Act, Title II of H.R. 667, and the Stop Turning Out Prisoners Act (STOP), Title III of H.R. 667.

It is clear from that record, however, that the troubling separation of powers implications of the PLRA were well known to its drafters. [FN38] In July of 1995, Associate Attorney General John Schmidt warned the Senate Judiciary Committee that the PLRA was subject to attack on separation of powers grounds. Associate Attorney General Schmidt explained that:

FN38. The PLRA was introduced by Senators Robert Dole, Orrin Hatch, Spencer Abraham, John Kyl, Harry Reid, Arlen Specter, Kay Bailey Hutchison, Strom Thurmond, Rick Santorum, Kit Bond, Alfose D'Amato, and Phil Gramm. 131 CONG. REC. S14,413 (daily ed. Sept. 27, 1995).

The application of these restrictions to such relief raises constitutional concerns under the Supreme Court's recent decision in Plaut v. Spendthrift Farm, Inc. .... The Court held in that case that legislation which retroactively interferes with final judgments can constitute an unconstitutional encroachment on judicial authority.... [T]he application of proposed 18 U.S.C. 3626(b) to orders in pre-enactment final judgments would raise serious constitutional problems. [FN39]

FN39. Associate Attorney General John Schmidt also had pragmatic reservations about the PLRA, warning that it would make it "virtually impossible for states to enter into consent decrees even when the consent decree may well be in the state's best interest for both fiscal and policy reasons...." 142 CONG. REC. S2297 (daily ed. Mar. 19, 1996).

142 CONG. REC. S2299 (daily ed. Mar. 19, 1996). By letter, Senators Fred Thompson, James Jeffords, Edward Kennedy, Joseph Biden, Jr., and Jeff Bingaman recommended that the "Administration negotiate changes in the PLRA that remedy the serious ... problems outlined by Mr. Schmidt and other experts." [FN40] See 142 Cong. Rec S2297 (daily ed. Mar. 19, 1996).

FN40. In one of those hearings before the Senate Judiciary Committee, former Chief of Staff to the Executive Director of Texas Department of Corrections Steve Martin implored the legislators not to pass the PLRA, at that stage known as the Stop Turning Out Prisoners Act, (STOP). After describing a Texas prison system at one time "beset by high levels of prisoner-on-prisoner violence and staff brutality, inhumane medical care, and overcrowding so extensive that, at one time, prisoners were housed three and four to a 45-square-foot cell," Martin stated: "I can say strongly and unequivocally that but for the sustained intervention of the federal court in the unconstitutional operation of the Texas prisons, the system would have continued to operate in the disturbing manner that I described previously." Overhauling the Nation's Prisons, Testimony Before the Senate Judiciary Committee (July 27, 1995) 1995 WL 449222.

From Martin's perspective, the PLRA would force states to litigate issues that could otherwise be settled through consent decrees:

It is equally indefensible for Congress to legislate the termination of all existing settlement agreements-known as consent decrees-in prison conditions cases. I know all too well that consent decrees are the product of endless hours of negotiations between the parties, carefully tailored to a particularized set of factual circumstances. Simply terminating these decrees arbitrarily by legislative fiat will undo all of that work, and immediately require departments of corrections around the country to prepare for trial in each case that is affected.

Id. Finally, as to the constitutionality of the statute, Martin told the Senate Judiciary Committee:

I would not represent myself as a constitutional scholar, but I know from the reading that I have done thus far, that there are legitimate claims of unconstitutionality that would be fertile ground for litigation for many years to come. Attached to my testimony is a letter signed by 250 constitutional law professors asserting that the STOP bill raises serious constitutional concerns, as well as an analysis done by a local law firm called Covington & Burling that reaches the same conclusion.

Id.

The Act's proponents, however, ignored those concerns and, rather, trumpeted the Act's potential to curb frivolous prisoner lawsuits and to end federal micro-management of state prisons. See Overhauling the Nation's Prisons, Testimony July 28, 1995, Before Senate Judiciary Committee, 104th Con. (1995)(statement of Sen. Hatch). Senator Dole characterized the PLRA provisions as restraining "liberal Federal judges who see violations of constitutional rights in every prisoner complaint and who have used these complaints to micromanage state and local prison systems" in fashioning remedies that raise conditions beyond minimal constitutional standards. 141 CONG. REC. S14,414 (daily ed. Sept. 27, 1995) (statement of Sen. Dole). Senator Abraham trumpeted the PLRA as "limiting judicial remedies in prison cases." 141 CONG. REC. S14316 (daily ed. Sept. 26, 1995). In the words of Senator Kay Baily Hutchison of Texas, "[p]risons exist for the protection of society-not for the comfort and convenience of criminals. Interference by the federal courts has put the interests of criminals ahead of the interests of victims and law-abiding citizens." Benjamin, 935 F.Supp. at 340 (quoting Hearing on Prison Reform Before the Senate Comm. On the Judiciary, 104th CONG. 1th Sess. (July 27, 1995)).

From this sparse legislative history of the PLRA, there can be no doubt that Congress not only knew of the constitutional problems with the statute, but passed the statute with the purpose of reopening and deciding judicially developed final judgments. [FN41] Congress's clear intent to set aside judgments made by federal courts in prison litigation only validates the unconstitutionality of the PLRA under the Supreme Court's decisions in Plaut and Klein.

FN41. The litigation before this court today has, on numerous occasions, been cited a target of such unconstitutional legislative tampering. See, e.g. 145 CONG. REC. E1-01 (daily ed. Jan. 6, 1999)(statement of Rep. DeLay); 144 CONG. REC. H2242-01 (daily ed. April 23, 1998) (statement of Rep. DeLay); 144 CONG. REC. H3404-01 (daily ed. May 19, 1998) (statement of Rep. DeLay); 131 CONG. REC. E2338-01 (daily ed. Mary 21, 1985) (statement of Rep. Fields).

8. Conclusion

As the Supreme Court of the United States' jurisprudence makes clear, Congress is prohibited from reopening a final judgment of an Article III federal court, and from prescribing decisions in particular cases. "The prohibition is violated when an individual final judgment is legislatively rescinded for even the very best of reasons, such as the legislature's genuine conviction (supported by all the law professors in the land) that the judgment was wrong; and it is violated 40 times over when 40 final judgments are legislatively dissolved." Plaut, 514 U.S. at 228, 115 S.Ct. 1447. The PLRA's termination provisions, by effectively terminating the consent decree that was negotiated as a resolution of the plaintiffs' valid allegations of unconstitutional abuse, neglect, and mistreatment in Texas prisons, violates the separation of powers doctrine of the United States Constitution.

C. Due Process

[6] Plaintiffs also argue that application of the termination provisions to the 1992 Final Judgment would violate due process by undermining vested rights created the judicial decision. As both contentions turn on the "finality" of the 1992 Final Judgment, the viability of this argument is directly related to the plaintiffs' separations of powers argument. "In essence, the vested rights doctrine is really only the due process analogue of the separation-of-powers doctrine that prevents Congress from reopening final judgments of Article III courts." Gavin v. Branstad, 122 F.3d 1081, 1091 (8th Cir.1997).

If the consent decree actually qualifies as a "final judgment" for separation of powers purposes, plaintiffs would have vested rights in its protections. See Hodges, 261 U.S. at 603, 43 S.Ct. 435. "It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases." McCullough v. Virginia, 172 U.S. 102, 123-24, 19 S.Ct. 134, 43 L.Ed. 382 (1898). It has been determined, based on the Supreme Court's decisions in Plaut, Rufo, Wheeling Bridge, and Northern Pipeline, that the 1992 Final Judgment in this civil action does qualify as a "final judgment" for the purpose of protection against legislative interference. The Due Process Clause protects the judgment rights of its beneficiaries, subject only to the court's inherent equitable powers as reflected in Rule 60(b). For the same reasons that this court granted plaintiffs' separation of power arguments, the court finds that the PLRA violates plaintiffs' due process rights by interfering with their vested rights in the decree.

[7] Plaintiffs make another, similar argument that the termination provisions of the PLRA unconstitutionally impair their contract with the State- a contract that was carefully negotiated to avoid litigating the constitutionality of the system itself. Plaintiffs argue that retroactive legislation should not, and cannot, nullify the hard-earned agreement represented by the consent decree:

Had the parties known of the PLRA requirements when they negotiated the Final Judgment, they could have stipulated to PLRA findings so the Judgment would not be immediately terminable. If defendants had refused to stipulate, plaintiffs would have been free to seek more stringent relief than provided by the Judgment, based on explicit PLRA findings. But sweeping away the settled expectations they did have because of a totally unanticipated later-enacted statute plainly violates plaintiffs' due process rights.

(Pl. Mem. in Opp. Mot. for J., Feb. 8, 1999, at 10). [FN42]

FN42. Plaintiffs argue that the compromises struck regarding contact visitation (non-partitioned direct contact with visitors) illustrate their point:

One telling example is Section XII of the Judgment on contact visiting, which does not directly address a constitutional violation (because there is no substantive right to such visitation). Defendants offered that provision expressly to induce the plaintiff class to forego the opportunity of seeking more stringent relief to remedy conditions that the court had found unconstitutional. Defendants should not be allowed to disavow the visiting provision by claiming that the PLRA nullifies it.

(Pl. Mem. in Opp. Mot. for J., Feb. 8, 1999, at 9 n. 3)

It is well-settled that "[a] consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature." Rufo, 502 U.S. at 378, 112 S.Ct. 748. A number of courts have considered consent decrees to be "hybrids," having "attributes both of contracts and of judicial decrees." Local No. 93, International Association of Firefighters v. City of Cleveland, 478 U.S. 501, 519, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986).

As a contract, the consent decree at issue in this civil action is protected from legislative impairment by the due process clause of the Fifth Amendment. See Pension Benefit Guaranty Corp. v. R.A. Gray Co., 467 U.S. 717, 733, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). However, when a federal statute impairs a private contract, judicial scrutiny is "quite minimal." National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe R.R. Co., 470 U.S. 451, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985). Furthermore, the statute violates the Due Process Clause only if Congress has "acted in an arbitrary and irrational way" in passing the PLRA. See Id. It is found that under the specific facts before the court here, such a finding is not warranted. Unlike their due process claim based on their vested rights in the judgment, the plaintiffs' contract-based due process claims, therefore, are without merit.

D. Equal Protection

[8] The plaintiffs further argue that the termination provisions of the PLRA are unconstitutional, because they deny equal protection to prisoners by restricting the fundamental rights of a disfavored and unpopular class of citizens. The first determination for such an equal protection claim is the applicable level of scrutiny. Heightened scrutiny is appropriate when a statute uses a classification that is constitutionally suspect, McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), or when such a statute burdens a fundamental right. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). The plaintiffs do not contend that prisoners are a suspect class, but rather that the PLRA restricts fundamental rights of prisoners and therefore is subject to strict scrutiny.

While 18 U.S.C. 3626(b)(2) and (3) circumscribe a district court's ability to provide some prospective relief to prisoners, this restriction is allowable only in the absence of violations of Federal rights. 18 U.S.C. 3626(b)(3). Therefore, because the termination provisions of the PLRA also permit prisoners to establish violations of their federal constitutional rights in federal courts, it cannot be said that the termination provisions restrict their fundamental rights. A statute that neither abridges a fundamental right nor operates against a suspect class receives rational basis review when it is challenged under the Equal Protection Clause. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).

[9] In determining whether there is a legitimate purpose for a legislative classification, the " 'burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.' " Heller v. Doe, 509 U.S. 312, 320-21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973)). The rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). "In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous." Romer, 517 U.S. at 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). "[C]ourts are compelled under the rational standard basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends." Heller, 509 U.S. at 321, 113 S.Ct. 2637. The PLRA satisfies this deferential standard. The plaintiffs have failed to show that the PLRA is not rationally related to a legitimate government purpose.

E. Conclusion

It is determined that the Supreme Court's jurisprudence clearly prohibits the legislature from reopening and deciding issues resolved by this court's 1992 Final Judgment. As an unconstitutional statute, the PLRA cannot be applied to this civil action by this court. Having found the termination provisions of the Prison Litigation Reform Act to be in clear violation of the separation of powers doctrine and due process clause of the Constitution of the United States, the plaintiffs' allegations of unconstitutional practices and conditions in the Texas prison system will be considered as alternative bases for the decision in this matter.

IV. THE FACT-FINDING HEARING

A. Procedure for the Truncated Hearing

Pursuant to the Court of Appeals for the Fifth Circuit's mandate that an order in this matter issue no later than March 1, 1999, the fact-finding hearing, which, as previously stated, had been expected to last between two and three months, was compressed into three-and-a-half weeks (including two Saturday sessions). Each party was granted one hour for opening statements and one hour for closing statements. Each party was granted fifty hours for the presentation of evidence, cross-examination of the other parties' witnesses, and objections. Plaintiffs used virtually all of their allotted time. [FN43] Defendants used all but four hours and twenty minutes of their fifty hours. Closing statements were heard on February 12, 1999.

FN43. Plaintiffs have made clear in the record their contention that the abbreviation of this hearing diminished their ability to present their case.

B. Procedure for Evidentiary Objections

In the interest of limiting interruptions during the short time available for testimony, it was determined that evidentiary objections would be unnecessarily time-consuming and disruptive during this fact-finding hearing. [FN44] As explained to both parties before the hearing, this court would, and has, relied only on admissible and relevant evidence to come to its conclusions. That is, during trial, all evidence was provisionally admitted. During deliberation by the court, inadmissible and irrelevant evidence was not considered. [FN45]

FN44. Such a procedure is well-supported by legal precedent and in practitioner's literature. See U.S. v. 1,078.27 Acres of Land, 446 F.2d 1030, 1034 (5th Cir.1971); 1 McCormick on Evidence 60, at 239-240 (4th ed. John W. Strong ed.1992). In 1950, the Eighth Circuit explained:

In the trial of a nonjury case, it is virtually impossible for a trial judge to commit reversible error by receiving incompetent evidence, whether objected to or not.... [I]n a trial or hearing where no jury is present, more time is ordinarily lost in listening to arguments as to the admissibility of evidence and in considering offers of proof than would be consumed in taking the evidence proffered....

Builders Steel Co. v. Commissioner, 179 F.2d 377, 379 (8th Cir.1950).

FN45. Some of the evidence before the court, particularly inmates' reports of statements by prison guards, is clearly hearsay. At times, however, the court considered such evidence under various exceptions to the hearsay rule, such as the admission of a party opponent exception, or the state of mind exception. That such evidence was deemed admissible, however, does not in any way speak to its credibility or weight.

V. OVERVIEW OF THE EVIDENCE

During the nineteen days of testimony, the court heard from over 60 witnesses and admitted over 330 exhibits. The plaintiffs' witness list was made up of nine well-credentialed experts (most of whom had reviewed some aspect of the TDCJ-ID system) and a great many current and former inmates who had purportedly experienced first-hand the unconstitutional conditions and practices complained of by the plaintiff class. [FN46] Defendants presented their case primarily through current or former TDC employees, some of whom were proffered as expert witnesses. Several experienced experts from outside the TDC system testified on behalf of the defendants as well. One prisoner was called by the defendants.

FN46. In addition to the approximately thirty-five inmates and former inmates who testified on behalf of the plaintiffs' class during the hearing, plaintiffs made a post-hearing offer of proof of the testimony of witnesses that purportedly would have been adduced if not for the fifty hour limitation on their case. To that end, plaintiffs filed on February 12, 1999 the signed declarations of fourteen inmates. While the court recognizes plaintiffs' frustration with the deadline and desire that these inmates' testimony be part of the record, these declarations were not considered by this court in the disposition of the motions to terminate the 1992 Final Judgment. But for the strict deadline imposed on this court, such inmates would have been allowed to testify and their stories heard.

Plaintiffs' evidence may be organized into several categories specifying allegations of unconstitutional practices and conditions in the Texas prison system. First, plaintiffs allege that TDCJ-ID is deliberately indifferent to prisoner's medical and psychiatric care needs. A number of medical and psychiatric experts testified on behalf of the plaintiff class. Plaintiffs' experts Drs. Dennis Jurczak, Roberta Stellman, Jeffrey Metzner, Steven Jenison, and John Robertson all alleged that their independent review of prison medical or psychiatric services revealed serious insufficiencies in TDCJ-ID's treatment of ill prisoners. A number of inmate witnesses testified to their own experiences with what they believe is a deficient system of medical and psychiatric care. Defendants responded with TDCJ-ID officials David Smith, M.D., who testified to the extensive medical policies and infrastructure of the TDCJ-ID medical system, Glenda Adams, M.D., who addressed some specific inmates' medical records, and Suzanne Ducate, M.D., who outlined the policies and procedures of TDCJ-ID psychiatric care. Defendants also called expert witness Robert Jones, M.D., who reported on his own evaluation of the Texas medical and psychiatric care system.

Through the testimony of penological psychology expert Craig Haney, as well as experts Breed and Riveland, and a number of psychiatrists, plaintiffs further allege that prisoners in administrative segregation, especially those with psychiatric illnesses, are suffering cruel and unusual punishment by being deprived of a minimal measure of civilized life's necessities. Plaintiffs further accuse TDCJ-ID of practicing a widespread pattern of warehousing mentally ill prisoners in administrative segregation. Defendants's psychiatric and medical experts, primarily those within the TDCJ-ID system, reject those allegations.

Through inmate and expert witnesses, plaintiffs also accuse TDCJ-ID of failing to ensure the reasonable safety of prisoners incarcerated in TDCJ. Plaintiffs' experts Allen Breed and Chase Riveland, both of whom have extensive experience in prison management, testified to systemic deficiencies in the system's attention to the needs of sexually and physically victimized inmates. Many, if not most, of the inmates who testified for the plaintiffs presented disturbing personal stories of their own victimization at the hands of other inmates, as well as their frustration with a system that, they allege, has failed to protect them despite repeated pleas for help. Defendants responded through a number of TDCJ officials, including officers in the cellblocks and Director of TDCJ-ID, Gary Johnson. The court also heard defense testimony rebutting plaintiffs' safety allegations from two non-TDCJ prison experts who evaluated the Texas system.

Plaintiffs finally allege that TDCJ-ID subjects prisoners to malicious and sadistic force by prison guards. Expert witnesses Breed and Riveland made condemnatory conclusions as to the prevalence of unnecessary and excessive force and intimidation of inmates by correction officers in their day-to-day interaction with them. Inmate witnesses repeatedly described their own purported experiences with, and resulting injuries inflicted by, abusive guards. Defendants countered those charges with essentially the same witnesses as utilized to rebut the inmate protection allegations. A number of individuals well-familiar with prison life testified that there is no pattern of excessive use of force in TDCJ-ID.

VI. OVERVIEW OF PRISONERS' RIGHTS UNDER THE EIGHTH AMENDMENT

The Constitution "does not mandate comfortable prisons," Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), but it also does not permit inhumane ones, Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). While prisoners certainly lose many of the freedoms the rest us of enjoy, they continue to live under the protection of the Eight Amendment, [FN47] a right animated by "broad and idealistic concepts of dignity, civilized standards, humanity, and decency." Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); see Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).

FN47. The Eighth Amendment provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII.

Prisoners are not made inhuman by virtue of their incarceration. "[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature to take its course." Farmer, 511 U.S. at 833, 114 S.Ct. 1970. The Eighth Amendment is "a right that recognizes that in a country such as ours, which aspires to the highest standards of civilization, there is simply no place for abuse and mistreatment, even in the darkest of the jailhouse cells." Madrid v. Gomez, 889 F.Supp. 1146, 1245 (N.D.Cal.1995).

The Eighth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment, prohibits the infliction of "cruel and unusual punishments" on those convicted of crime. Robinson v. California, 370 U.S. 660, 666-67, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). While there is no static "test" by which the courts determine whether conditions of confinement are cruel and unusual, Rhodes, 452 U.S. at 346, 101 S.Ct. 2392, the Eighth Amendment prohibits punishments that are "incompatible with 'the evolving standards of decency that mark the progress of a maturing society' ... or which 'involve the unnecessary and wanton infliction of pain.' " Estelle, 429 U.S. at 102-103, 97 S.Ct. 285 (citations omitted ). The Eighth Amendment prohibits punishments such as physical and sexual assault, physically abusive guards, or deprivation of medical care. See Farmer, 511 U.S. at 832, 114 S.Ct. 1970. "Being violently assaulted in prison is simply not 'part of the penalty that criminal offenders pay for their offenses against society.' " Id. at 834, 114 S.Ct. 1970 (quoting Rhodes, 452 U.S. at 347, 101 S.Ct. 2392).

The Eighth Amendment requires that prison officials provide inmates with such minimum essentials as adequate food, shelter, clothing, medical care, and officials must also take reasonable measures to ensure the safety of inmates. Helling, 509 U.S. at 32, 113 S.Ct. 2475; Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

An inquiry into an Eighth Amendment claim alleging cruel and unusual punishment has two components. The first component is an objective one: "Was the deprivation sufficiently serious?" Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). "[A] prison official's act or omission must result in the denial of 'the minimal civilized measure of life's necessities.' " Farmer, 511 at 834, 114 S.Ct. 1970 (quoting Rhodes, 452 U.S. at 347, 101 S.Ct. 2392.) This objective component is contextual and responsive to "contemporary standards of decency," Estelle, 429 U.S. at 103, 97 S.Ct. 285, and it focuses on discrete and essential human needs such as health, safety, food, warmth, and exercise. Wilson, 501 U.S. at 304, 111 S.Ct. 2321. And, whether or not a claimant is successful in an Eighth Amendment claim is an issue of law for the court to decide. Hickey v. Reeder, 12 F.3d 754, 756 (8th Cir.1993).

The second component of an Eighth Amendment inquiry involves intent and is subjective: "Did the officials act with a sufficiently culpable state of mind?" Wilson, 501 U.S. at 298, 111 S.Ct. 2321 (1991). "The source of the intent requirement is not the predilections of this Court, but the Eighth Amendment itself, which bans only cruel and unusual punishment. If the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify." Id. at 300, 111 S.Ct. 2321 (emphasis in original ). In prison-conditions cases, the state of mind required is "deliberate indifference" to the inmate's health and safety. Id. at 303, 111 S.Ct. 2321. In excessive force cases, plaintiffs must show that "officials used force with 'a willingness that [harm] occur.' " Farmer, 511 U.S. at 836-37, 114 S.Ct. 1970 (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (internal quotation marks and citations omitted )).

Mere negligence is not enough to support an Eighth Amendment claim in prison- condition cases. See Estelle, 429 U.S. at 106-107, 97 S.Ct. 285. Rather, the test for deliberate indifference is the criminal law standard of subjective recklessness. Farmer, 511 U.S. at 839-840, 114 S.Ct. 1970. That is, prison officials must have consciously disregarded a substantial risk of serious harm to prisoners. Id. at 839, 114 S.Ct. 1970 (internal quotations omitted ) (citing Model Penal Code 2.02(2)(c)). This state of mind inquiry "is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence...." Id. at 842, 114 S.Ct. 1970. "[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id.

At the same time, "a prison of